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The Gender Confusion Chronicles: A Fast-Paced Look at Sports and the Law

Posted by Zach Lowe

There isn't a thornier or more uncomfortable issue in sports right now than the questions surrounding Caster Semenya, the 18-year-old South African runner who won the women's 800 meters at the world track and field championships last month. It is hard to imagine a question more fundamental to an athlete's career and identity than the one people are asking of Semenya: Is she really a woman?

The International Association of Athletics Federations has ordered Semenya to undergo gender testing after she blew the field away at the world championships in Berlin, according to The New York Times. Semenya could be stripped of that world championship and banned from competition if the IAAF doesn't like those test results.

So she's hired Dewey & LeBoeuf's sports law guru Jeffrey Kessler to represent her pro bono, according to the firm. Kessler gained fame in South Africa last year, when he convinced the Court of Arbitration for Sport that Oscar Pistorius, a South African double-amputee sprinter who competes with two prosthetic legs, should be allowed to race in the 2008 summer Olympics in Beijing. That ruling overturned an IAAF decision banning Pistorius because the prosthetic legs supposedly gave him an unfair advantage.

Kessler says various "leaked reports" about Semenya aren't true. He wouldn't specify exactly which reports he was referring to, but the only leaks we know of in the Semenya case occurred when an Australian newspaper claimed that initial IAAF gender test results showed Semenya is intersex, according to the AP. More specifically, they showed Semenya does not have ovaries or a uterus; has an elevated level of testosterone; and has internal testes.

"We do not think the leaked information is accurate," Kessler says. "We don't know where it came from."

Kessler has what we think is a very interesting take on the Semenya gender issue: That, essentially, the findings shouldn't matter unless Semenya has done something illegal or artificial to give herself an advantage. (We suppose it would also matter if Semenya were simply a man disguising herself as a woman, but nobody seems to think that is happening here.) Kessler explains: "Every superlative athlete in the world has some genetic advantage. There's a reason Michael Jordan could jump as high as he could. Sports has never been about genetic equality. This whole inquiry to determine things like whether an athlete has too much or too little testosterone goes against the whole fundamental nature that sports is about different people who have different advantages."

As for the nuts and bolts of the case, Kessler--working with Dewey's office in Johannesburg--wants to know whether the IAAF has tested Semenya, how those tests are being administered, and who is administering them and tracking the results. He also wants to know whether Athletics South Africa, the nation's governing body for sports, tested Semenya before the world championships in Berlin last month. The ASA has repeatedly denied that such testing took place, but a weekly South African newspaper reported Friday that ASA indeed tested Semenya before the event. (The ASA had already announced it would conduct an internal investigation on its handling of Semenya's career.)

Kessler says it's possible the IAAF or ASA--or both--violated Semenya's rights to medical privacy, something that could discredit any test results either body might obtain. Either way, though, Kessler says Semenya's timing in hiring Dewey is better than Pistorious's; the IAAF had already suspended Pistorius by the time Kessler got involved. Now he's in a position to protect Semenya before any adverse ruling, he says.

We reached out to Mark Gay, the DLA Piper lawyer who represented the IAAF in the Pistorius case, to see if the IAAF had retained him in this matter. We haven't heard back yet.

Some quick bullets in the world of sports law:

• The Phoenix Coyotes bankruptcy case took an unexpected turn late Thursday, when lawyers from the team's current owners (a team from Squire, Sanders & Dempsey) unexpectedly asked the judge to force the relevant parties into mediation rather than deciding from the bench who should own the team. They even suggested a California mediator who could decide who should get the Coyotes: The National Hockey League or Canadian business mogul Jim Balsillie, who is offering much more money but wants to move the team to Hamilton, Ontario. The NHL owners have voted against allowing Balsillie into the league, and have pointed to league rules saying the NHL has say over the relocation of a franchise.

The league and its lawyers at Skadden, Arps, Slate, Meagher & Flom claim Balsillie, who has twice before tried to buy NHL teams and move them to Canada, is trying to use bankruptcy court to get around those relocation rules.

The league filed papers Friday asking Judge Redfield T. Baum to deny the debtor's motion to send the issue to a mediator.

As we've written before, this may be the single most important sports case of the year.

• Another candidate for that honor is heading for the U.S. Supreme Court, and it will pit Jones Day against Covington & Burling in a showdown with huge implications for the role of antitrust law in sports. The case concerns the National Football League's contention that it can sign one overarching deal licensing all apparel bearing NFL team logos to a single licensee (in this case, Reebok). Another apparel company, American Needle, has challenged that practice, claiming companies should be able to compete for business with individual teams. The NFL has claimed that for purposes of licensing apparel, the league is a single entity that should be exempt from antitrust laws.

The league has won at every level so far, including in the U.S. Court of Appeals for the Seventh Circuit last year. American Needle asked SCOTUS to take the case, and the high court agreed--after an unexpected push from the NFL, which may be hoping for a wider ruling in the case that extends an antitrust exemption beyond apparel licensing, according to The Wall Street Journal and lawyers we've chatted with.

Gregg Levy at Covington & Burling, the NFL's longtime counsel, is representing the league. Glen Nager, who won the famous Ledbetter pay discrimination case at the Supreme Court on behalf of Goodyear, has been retained to represent American Needle.

The court will hear the case this term.

• We wanted to pass on this update on the sad case involving a 15-year-old high school football player in Kentucky who died after collapsing from heat stroke during practice in 2008. As we wrote earlier this year, a grand jury indicted the boy's coach, David Jason Stinson, on charges of reckless homicide for pushing the team hard despite temperatures in the mid-90s and repeated requests by some of the boys for water.

Sports law experts told us Stinson was the first coach in U.S. history to face criminal charges for a heat-related football death. About 100 football players have died from heat-related illnesses, and several civil suits against teams and equipment makers have resulted in varying settlements.

Well, jurors acquitted Stinson this week, just over a year after Max Gilpin's death. Experts testifying for the defense argued that Gilpin's use of the supplement creatine and the attention deficit disorder drug Adderall, combined with a preexisting illness, likely caused his death, according the AP. Other witnesses testified that Gilpin could have been saved had he been immersed in ice water immediately after collapsing.

We called Todd Thompson, the attorney representing Gilpin's family in several civil suits against Stinson and other defendants, to ask about the status of those complaints. We haven't heard back.

• Finally: Has it really been two years since prosecutors charged baseball's all-time home run king, Barry Bonds, with lying to a grand jury about alleged steroid use? And has it really been nearly six years since the grand jury testimony in question?

We assume you're as tired of this story as we are, so we'll keep this update brief: Prosecutors in the Bay Area asked a federal appeals this week to allow them to show jurors evidence--including three positive steroid tests--linked to raids on Balco, the Bay Area lab that supplied performance-enhancing drugs to several high-profile athletes. A trial court judge tossed out the evidence, claiming it was hearsay and that only testimony from Bonds' personal trainer, Greg Anderson, could tie the evidence to Bonds. Anderson has refused to testify against Bonds.